RAMACHANDRA TRIPATHY Vs. MAGUNI TRIPATHY

JUDGEMENT

(1.) DEFENDANT is the appellant in this second appeal. It arises out of a suit brought by the plaintiff for a declaration that he is the Purohit of the deity of Kapileswar in Chonomeri, and that he is the Guru of the Archakas of the said deity, and for the issue of a permanent injunction restraining the defendant from interfering with his rights as such Purohit and Guru. Both the plaintiff and the defendant trace their title from a common ancestor, Madhab Tripathi, who had two sons, Kapila and Harekrishna The last descendant in the male line of Harekrishna was one Dasarthi who died unmarried at a young age in or about 1927. the defendant is his sister's son. The plaintiff is the descendant of the said common ancestor Madhab Tripathi, through Kapila. His father, one Agadhu, was a daughter's son in the male line of Kapila. But it is the plaintiff's case that the said Agadhu was adopted to one Lokenath, the brother of his maternal grand -father, Jugalo, was a direct agnatic descendant of Kapila so that in law Agadhu was also an agnatic descendant of Kapila through Lokanath. The plaintiff was therefore according to his case an agnatic descendant of Kapila through his father Agadhu. It is the case of both parties that for a very condsiderabla time, the duties of the Purohit of this temple and of the Guru of the Archakas, were being performed by the members of the family of Madhab Tripathi. It is not very clear from the plaint whether the alleged right was being enjoyed by the two branches of Madhab Tripathi's family jointly or in severally by some arrangement of partition, but in his evidence the plaintiff says that both sharers perform the service by turns and sometimes jointly. The plaint proceeds on the footing that the plaintiff as an agnate is the successor to the rights of Dasarathi Tripathi, the last agnatic descendant of Harekrishna's line in preference to the defendant who is Dasarathi's sister's son, without any clear indication whether Dasarathi was only a part -owner of the rights the rest being already vested in him, However that may be, the plaintiff would be the full owner of the said rights if his case is established. The defendant contested the suit on various grounds. He denied that the plaintiff's father Agadhu was adopted to Lokanath and asserted that plaintiff was only a cognate heir of late Dasarathi, remoter than himself He put forward a will by the late Dasarathi in his favour. He maintained that the plaintiff's suit was not maintaiainable being one not appertaining to a civil right. He further contended that the suit was barred by limitation. The Courts below have held against the defendant on all these points and hence this second appeal.

(2.) IT cannot be disputed that id plaintiff's father Agadhu is not the son of Lokanath, he would, in relation to Dasarathi, be only the daughter's grandson of a collateral agnate and thus would be remoter in heirship than the defendant who is Dasarathi's sister's son. Both the Courts below however have held it clearly established that the plaintiff's father Agdhu, who is the Daughter's son of one Jugal, was adopted to Jugolo's brother, Lokanath, relying on the recognition of Agadhu as such adopted son in various documents, viz., Exs. 1 to 7. The factum of such adoption must therefore be taken to have been conclusively established between the parties and is not challenged in second appeal. Learned counsel for the appellant however has attempted to argue that the adoption of Agadhu by Lokanath was invalid in law inasmuch as he was the daughter's son of his own brother, Jugal. There is no trace of any such contention in the Courts below. It is no doubt true that the adoption of a daughter's son is not recognised as being valid according to general Hindu law. (See Privy Council case in Bhagwan Singh v. Bhagwan Singh, 21 ALL 412: (26 l. A. 153 P.C.). But it is also recognised that such an adoption is valid by custom. Such a custom is now well established in South India, (see Vayidinada v. Appu, 3 Mad. 44 (F. B.), Ranganayakamma v. Samsundara Rao, A. I. R. (7) 1920 Mad. 1451 : (43 Mad. 876), and Soorathe Singa v. Kanaka Singa, A. I. R (7) 1920 Mad. 648: (43 Mad. 867). The question of the validity of adoption of the daughter's son being therefore one which depends en proof of custom cannot be permitted to be taken foe the first time in second appeal, when the Courts below assumed its validity without any objection being raised. It is not at all unlikely that no such objection was raised in the Courts below, because the parties are Oriya Brahmins of Ganjam District which until 1936 formed part of the Madras Province, and who presumably followed the laws and customs relating to adoption as prevalent in the Madras Province. It is noteworthy that in the case in Ranganayakamma v. Somasundara Rao, A. I. R. (7) 1920 Mad. 451 : (43 Mad. 876), where this custom was upheld on the evidence of various instances of such adoptions, 22 of such instances related to Oriya Brahmins of Ganjan Districh. See Ranganayakamma v. Somamndara Rao, A. I. R. (7) 1920 Mad. 451 at p. 465, Col. II : (43 Mad. 876). The attempt to raise this question therefore is second appeal must be disallowed.

(3.) THE only question that has been strongly argued before us in this appeal is that the rights asserted by the plaintiff in this suit are not civil rights and that the suit is not of a civil nature and therefore the suit is not maintainable. This is the only substantial question In this appeal. It is urged that there can be no 1951 Orissa/9 & 10 civil right to officiate as a Purohit or as a Guru that the members of the public are entitled to choose whomsoever they like to minister for them as their Purohit or as their Guru and that no declaration can be granted recognising Such a right in one person, nor can any injunction be issued restraining another person from officiating as a Guru or Purohit. It has been pointed out that the Courts below have proceeded on the erroneous view that the question as to whether there is such a civil right or nod depends on whether it carries any emoluments and that they assumed without any basis that the rights asserted by the plaintiff amount to an office carrying certain emoluments.